How to Maximize Your Opportunity to Achieve Success for your Client in Mediation

January 2, 2020

Step 1: Select the Appropriate Mediator

  • Speak to the Mediator prior to scheduling to determine if there is a rapport/chemistry and find out what styles of mediation the Mediator is trained in.
  • Inquire about or research the Mediator’s reputation
  • Request a copy of the Mediator’s CV
  • Does the Mediator have experience in the subject matter being mediated?
  • Do the fees fit into your budget?
  • Does the Mediator have any potential conflict of interest?

Step 2:  Be Prepared

  • Prepare your client by letting your client know what to expect. Strategize the presentation of your case. Consider your clients’ degree of involvement. Does your client help or hurt the presentation of the case?
  • Research legal issues. You can’t sell your position and case strengths if you don’t know what they are. Play the devil’s advocate by considering the strengths and weaknesses of your opponents’ case as this will allow to be better prepared to address and counter those facts in your negotiations. Review cases for and against your position on key legal issues and be prepared to explain why your position is correct. (Having the cases with you doesn’t hurt.)
  • Conduct jury-verdict analysis for cases with similar facts to determine what verdict might be expected at trial. It’s important to know if facts like yours resulted in a million-dollar verdict or summary judgment for failure to prove an essential element. Be prepared to distinguish facts or legal issues from jury verdicts you believe the other side will use in support of its damage analysis.

Step 3:  Communicate with the Mediator

  • Be clear on what submissions the mediator wants in advance. Does the Mediator accept or require a Pre-Mediation Statement (summary or brief prepared for the Mediator which outline your insights on the case)?  Typically, these Statements are kept confidential.
  • Make sure you know the Mediator’s Preference on case presentation. Will there be on opportunity to present opening statements? Does the Mediator caucus frequently?
  • It can save time and money if you submit records in advance that you want your adversary and the Mediator to be aware of. This will also help to ensure that your adversary is ready to mediate.  If your adversary knows you are ready, it may motivate them to be ready.

Step 4:  Keep an Open Mind, a Cooperative Attitude and Participate Constructively.

  • Enter the mediation with the right attitude (be ready to attempt to settle).
  • Be willing to listen and if appropriate be sympathetic.
  • Don’t make it about your adversary and avoid making it about you.
  • Be respectful.
  • Have a sense of humor if circumstances allow it.
  • Try to avoid posturing (posturing escalates emotions which can impact coming to resolution).
  • Be patient. Reaching settlement may take more than one mediation session.

Step 5:  Memorialize the terms of Proposed Agreement

When your case settles in Mediation, ask the Mediator to put the terms of the settlement in writing and all Parties should sign off on the settlement with releases and other appropriate paperwork to be exchanged.  This can prevent a Party from having second thoughts.